IN THE UNITED STATES COURT OF APPEALS FOR THE · PDF fileUnited States Court of Appeals Fifth Circuit . FILED . August 20, 2014 . Lyle W. Cayce . Clerk . Case: 13-40326 Document: 00512752300

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 13-40326

MC ALLEN GRACE BRETHREN CHURCH; NATIVE AMERICAN NEW LIFE CENTER; SAN ANTONIO INDIAN FELLOWSHIP; SOUTH TEXAS INDIAN DANCERS ASSOCIATION; LINDA CLEVELAND, Individually; MICHAEL CLEVELAND, Individually; EDITH CLARK, Individually and as council member of Native American New Life Center; WILLIAM CLARK, Individually and as member of Native American New Life Center; CARRIE FELPS, Individually; HOMER HINOJOSA, Individually and as member of McAllen Grace Brethren Church, San Antonio Indian Fellowship, and South Texas Indian Dancers Association; NANCY HOLLINGWORTH, as a member of Native American New Life Center; LUCIAN ODEN, as a member of San Antonio Indian Fellowship; XAVIER SANCHEZ, as member of San Antonio Indian Fellowship; PASTOR ROBERT SOTO, Individually and on behalf of McAllen Grace Brethren Church, Native American New Life Center, San Antonio Indian Fellowship, and South Texas Indian Dancers Association; VERONICA RUSSELL; MICHAEL RUSSELL, Individually,

Plaintiffs - Appellants v.

KEN SALAZAR, Secretary of the United States Department of the Interior,

Defendant - Appellee

Appeals from the United States District Court

for the Southern District of Texas Before JONES, ELROD, and HAYNES, Circuit Judges.

United States Court of Appeals Fifth Circuit

FILED August 20, 2014

Lyle W. Cayce Clerk

Case: 13-40326 Document: 00512752300 Page: 1 Date Filed: 08/29/2014

No. 13-40326

HAYNES, Circuit Judge:

Appellants filed suit against the Department of the Interior (the

“Department”) seeking a declaration of rights that the Department’s

enforcement of the Migratory Bird Treaty Act (the “MBTA”) and the Bald and

Golden Eagle Protection Act (the “Eagle Protection Act”) violates the Free

Exercise Clause of the First Amendment and the Religious Freedom

Restoration Act (“RFRA”) because it prohibits American Indians who are not

members of federally recognized tribes from possessing bald and golden eagle

feathers. The district court granted the Department’s motion for summary

judgment, finding that the Department’s implementation of the Eagle

Protection Act was narrowly tailored to a compelling governmental interest.

Because we find that the Department did not provide sufficient evidence that

the policy of limiting permits for the possession of eagle feathers to members

of federally recognized tribes survives the scrutiny required by RFRA, we

REVERSE the district court’s grant of summary judgment and REMAND for

proceedings consistent with this opinion.

I. Factual and Procedural Background

In 2006, Appellants Michael Cleveland, Robert Soto, and Michael Russell

attended an American Indian religious ceremony, known as a powwow, where

eagle feathers were in the possession of and worn by its participants. An agent

of the United States Fish and Wildlife Service attended the powwow and

noticed that Cleveland was selling “dream catchers” bearing bird feathers.

Cleveland’s feathers were confiscated, and he faced criminal charges for the

unlawful possession, sale, offer to sell, or transportation of migratory birds or

their parts without a permit in violation of the MBTA, 16 U.S.C. § 703. The

Appellants do not challenge his criminal conviction.

Soto and Russell, powwow participants, were also in possession of eagle

feathers. Russell, who admitted that he was not an American Indian, was 2


No. 13-40326

issued a Notice of Violation under the Eagle Protection Act for possession of

eagle feathers without a permit, and the feathers in his possession were seized.

Soto identified himself as a member of the Lipan Apache Tribe. After the agent

determined that the Lipan Apache Tribe is not federally recognized, he set up

a meeting with Soto and Russell, during the course of which they both signed

voluntary abandonments, abandoning the feathers they possessed, and Russell

agreed to pay the fine associated with his Notice of Violation. In exchange,

there was no further criminal investigation.

Soto filed a petition with the Department for the return of his property.

It was denied, along with his supplemental petition, because Soto is not a

member of a federally recognized tribe—a prerequisite for obtaining a permit

for possession under the Eagle Protection Act according to regulations

promulgated by the Department. See 50 C.F.R. § 22.22(a) (2012).

The Plaintiffs filed this action in the United States District Court for the

Southern District of Texas, claiming that the confiscation of the feathers

violated the Free Exercise Clause of the First Amendment. This case was

stayed for several years during the pendency of a parallel criminal proceeding

involving Cleveland and an administrative proceeding involving Soto. After

the stay was lifted, the Plaintiffs amended the complaint, naming the

Department as the sole defendant. The parties filed cross motions for

summary judgment, and the district court granted the Department’s motion.

The Plaintiffs appealed.

II. Statutory and Regulatory Background

The MBTA was enacted in 1916 to implement a convention between the

United States and Great Britain. 16 U.S.C. § 703(a).1 It prohibits the harming,

1 The statute has been subsequently amended to reflect similar treaties with Mexico (1936), Japan (1972), and the former Soviet Union (1976).

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selling, or possessing of migratory birds or their parts. Id. Section 704

authorizes the Department to permit takings of migratory birds when it is

compatible with the terms of the various conventions.

The Eagle Protection Act was passed in 1940 in order to protect the bald

eagle from extinction because it is “a symbol of the American ideals of freedom.”

76 Pub. L. No. 567, 54 Stat. 250 (1940). The statute itself prohibits the taking,

possession, sale, barter, purchase, transport, export, or import of bald eagles

or golden eagles or any parts of bald eagles or golden eagles, except as

permitted by the Secretary of the Interior.2 16 U.S.C. §§ 668, 668a (2012). The

statute initially did not apply to golden eagles, nor did it contain exceptions for

American Indian tribes. See United States v. Dion, 476 U.S. 734, 740–41

(1986). In 1962, the statute was amended to protect the golden eagle, and at

the same time, was amended to provide an exception “for the religious purposes

of Indian tribes.” § 668a; see also Dion, 476 U.S. at 741–43. Section 668a

grants the Secretary of the Interior broad authority to authorize the taking of

eagles or eagle parts for the purposes of public museums, scientific societies,

zoos, Indian religious uses, wildlife protection, agricultural protection, and

“other interests”—provided the grant of the permit is compatible with the

preservation of the eagles.3

Congressional hearings held over the addition of the golden eagle made

clear that golden eagles are important for the religious practices of many

2 Permits are not required for bald eagle parts, nests, or eggs acquired prior to June 8, 1940, or for golden eagle parts, nests, or eggs acquired prior to October 24, 1962. 50 C.F.R. § 22.2.

3 The regulations promulgated by the Department to enforce the statute further indicate that eagles or eagle parts possessed pursuant to a valid permit may not be transferred unless they have been “handed down from generation to generation or from one Indian to another in accordance with tribal or religious customs.” 50 C.F.R. § 22.22(b)(1) (2012).

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American Indian tribes.4 Dion, 476 U.S. at 741–743. When first enacted, the

regulation stated that when “the taking and possession of bald or golden eagles

for the religious purposes of Indian tribes is compatible with the preservation

of such birds, [the Secretary] may issue permits for such taking and possession

to those individual Indians who are authentic, bona fide practitioners of such

religion.” 50 C.F.R. § 11.5 (1966) (emphasis added). When the Code of Federal

Regulations was amended and restructured in 1974, the permitting system

required applicants attach a certification from the Bureau of Indian Affairs

that the applicant is an Indian, but it did not specify that the individual had

to be enrolled in a federally recognized tribe.5 50 C.F.R. § 22.22 (1974). The

Department of Justice has interpreted the regulation as limiting the permits

to members of federally recognized tribes since release of the “Morton Policy”

in 1975, which “clarif[ied] the Department of the Interior’s responsibilities and

intentions” regarding the enforcement of the Eagle Protection Act. Rogers C.B.

Morton, Secretary of the Interior, Policy Statement on Indian Use of Bird

4 By way of background, we observe that Assistant Secretary of the Interior Frank Briggs wrote a memo to Congress stating:

The golden eagle is important in enabling many Indian tribes, particularly those in the Southwest, to continue ancient customs and ceremonies that are of deep religious or emotional significance to them. . . . There are frequent reports of continued veneration of eagles and of the use of eagle feathers in religious ceremonies of tribal rites. . . . In the circumstances, it is evident that the Indians are deeply interested in the preservation of both the golden and the bald eagle. If enacted, the bill should therefore permit the Secretary of the Interior, by regulation, to allow the use of eagles for religious purposes by Indian tribes.

Dion, 476 U.S. at 741–42 (citation and internal quotation marks omitted). 5 While a Certificate of Degree of Indian Blood requires an individual to demonstrate

a blood relationship to ancestors who were or are members of enrolled tribes, it does not grant membership to the tribe, nor does it require the individual actually be enrolled as a member of a federally recognized tribe to obtain the certificate. BUREAU OF INDIAN AFFAIRS, OMB Control. No. 1076-0153, Certificate of Degree of Indian or Alaska Native Blood Instructions, available at http://www.bia.gov/idc/groups/public/documents/text/idc002653.pdf (last visited March 3, 2014).

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Feathers (Feb. 5, 1975), available at http://www.justice.gov/ag/ef-policy.pdf

(last visited July 25, 2014). However, it was not until 1999, over three decades

after the amendment was enacted, that the Secretary promulgated regulations

requiring that individuals seeking permits must demonstrate that they are

members of federally recognized Indian tribes. 50 C.F.R. § 22.22(a)(5) (2000).

Once an American Indian receives a permit from the Secretary, the

permit is forwarded to the National Eagle Repository in Colorado, which

receives dead eagle parts and distributes them to qualified permit applicants

on a first-come, first-served basis. According to the evidence on record, whole

bird orders take approximately three and a half years to fill, and loose feather

orders take approximately six months to fill.

III. Standing

Before reaching the merits, we must first consider whether the claimants

have standing to bring suit in federal court. It is undisputed that none of the

claimants applied for a permit with the Department. However, standing has

been found despite failure to apply for a benefit if doing so would have been

futile. Ellison v. Connor, 153 F.3d 247, 255 (5th Cir. 1998). The Department

denied Soto’s request to have his feathers returned to him because he could not

qualify for a permit as he is not a member of a federally recognized tribe. It is

further undisputed that the Plaintiffs would not qualify for a permit because

none of them are enrolled in federally recognized tribes. Additionally, Soto

does allege a personal injury that is traceable to the Department’s conduct: his

feathers were confiscated by the agent at the powwow.6 See Roark & Hardee

6 While Russell was in possession of some of the feathers confiscated at the powwow, the record indicates that the feathers actually belonged to Soto. Furthermore, the Plaintiffs have not raised arguments concerning Cleveland’s criminal conviction, thus waiving those claims. See Lockett v. EPA, 319 F.3d 678, 684 n.16 (5th Cir. 2003). Therefore, we do not consider whether these Plaintiffs would have individual standing.

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No. 13-40326

LP v. City of Austin, 522 F.3d 533, 542 (5th Cir. 2008) (plaintiffs must allege a

personal injury that is traceable to the defendant’s actions to have standing).

It is well settled that once we determine that at least one plaintiff has

standing, we need not consider whether the remaining plaintiffs have standing

to maintain the suit. See Nat’l Rifle Ass’n v. Bureau of Alcohol, Tobacco,

Firearms & Explosives, 700 F.3d 185, 192 (5th Cir. 2012). Because Soto has

standing, we find sufficient standing for the Plaintiffs to challenge the

regulatory scheme.7

IV. Applicable Law and Standard of Review

We review the district court’s grant of summary judgment de novo.

Terrebonne Parish Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir.

2002). Summary judgment is appropriate if the moving party shows there is

“no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” FED. R. CIV. P. 56(a).

When Congress enacted RFRA in 1993, it did so explicitly to create “a

statutory prohibition against government action substantially burdening the

exercise of religion.” S. Rep. No. 103-111, 2 (1993), reprinted in 1993

U.S.C.C.A.N. 1892, 1893; see also Diaz v. Collins, 114 F.3d 69, 71 (5th Cir.

1997). RFRA was enacted to “restore the compelling interest test set forth in

Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205

(1972).” 42 U.S.C. § 2000bb(b)(1). RFRA states: “Government shall not

substantially burden a person’s exercise of religion even if the burden results

from a rule of general applicability, except as provided in subsection (b) of this

section.” 42 U.S.C. § 2000bb–1(a). Subsection (b) provides that “Government

7 While the Eagle Protection Act specifies that the religious exception is “for the religious purposes of Indian tribes,” 16 U.S.C. § 668a, the actual permits are granted to individual members of tribes, not to the tribes themselves. 50 C.F.R. § 22.22. The Department does not argue that the statute or associated regulations create a group right rather than an individual right.

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may substantially burden a person’s exercise of religion only if it demonstrates

that application of the burden to the person—(1) is in furtherance of a

compelling governmental interest; and (2) is the least restrictive means of

furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(b).

The compelling interest test is “a mixed question of fact and law, which is

subject to de novo review.” Garner v. Kennedy, 713 F.3d 237, 242 (5th Cir.

2013).

V. Discussion

The Department does not contest the Plaintiffs’ assertion that the Eagle

Protection Act substantially burdens their religious beliefs. Soto is involved in

a ministry that uses eagle feathers in its worship practice, and his sincerity in

practicing his religion is not in question. Furthermore, the eagle feather is

sacred to the religious practices of many American Indians.8 Therefore, any

scheme that limits the access that Soto, as a sincere adherent to an American

Indian religion, has to possession of eagle feathers has a substantial effect on

the exercise of his religious beliefs. Cf. A.A. ex. rel. Betenbaugh v. Needville

Indep. Sch. Distr., 611 F.3d 248, 264 (5th Cir. 2010) (noting that complete bans

on religious conduct “substantially burden[] an adherent’s free exercise of that

religion” (citation and internal quotation marks omitted)). Importantly, once

the regulatory scheme has been shown to substantially burden a sincerely-held

religious belief, the burden is on the government to establish that the

regulation (1) advances a compelling government interest; and (2) is the least

restrictive means of furthering that interest. 42 U.S.C. § 2000bb-1(b); see also

Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2779 (2014). We conclude

8 We recognize that not all American Indian religions hold the eagle feather to be sacred. However, for the sake of simplicity in this opinion, we refer to all American Indian religions that hold the eagle feather sacred as “American Indian religions.”

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that, on this record at this early, summary judgment stage, the government

did not discharge that burden.

A. Compelling Interests

In Wisconsin v. Yoder, 406 U.S. 205, 215 (1972), the Court defined

a compelling interest as “only those interests of the highest order.” In Sherbert

v. Verner, 374 U.S. 398, 406 (1963), the Court stated that “[o]nly the gravest

abuses, endangering paramount interest, give occasion for permissible

limitation.” (citation and internal quotation marks omitted).9 We have

previously stated that, in determining whether a statute furthers a compelling

interest, “RFRA requires the government to explain how applying the

statutory burden to the person whose sincere exercise of religion is being

seriously impaired furthers the compelling governmental interest.” Tagore v.

United States, 735 F.3d 324, 330–31 (5th Cir. 2013) (citation and internal

quotation marks omitted); see also Merced v. Kasson, 577 F.3d 578, 592 (5th

Cir. 2009) (recognizing that the government must show that the challenged

law as applied to the claimant satisfies the compelling interest). Therefore,

“general statements of its interests” are not sufficient to demonstrate a

compelling governmental interest; rather, the interests need to be closely

tailored to the law. Merced, 577 F.3d at 592. Where a regulation already

provides an exception from the law for a particular group, the government will

have a higher burden in showing that the law, as applied, furthers the

compelling interest. Hobby Lobby, 134 S. Ct. at 2781–82; Tagore, 735 F.3d at

331.

9 The Court has held that maintaining the tax system, Hernandez v. Commissioner, 490 U.S. 680, 699 (1989), enforcing participation in the social security system, United States v. Lee, 455 U.S. 252, 258–59 (1982), and protecting children’s welfare, Prince v. Massachusetts, 321 U.S. 158, 166–67 (1944), all qualify as compelling interests.

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Against this backdrop, we consider the interests that the Department

argues are compelling: (1) protecting eagles and (2) fulfilling the government’s

“unique responsibility” to federally recognized tribes.

1. Protecting Eagles

We agree with the Tenth and Ninth Circuits that protecting bald eagles

qualifies as a compelling interest because of its status as our national symbol,

regardless of whether the eagle still qualifies as an endangered species. See

United States v. Wilgus, 638 F.3d 1274, 1285 (10th Cir. 2011); United States v.

Vasquez-Ramos, 531 F.3d 987, 991 (9th Cir. 2008). In passing the Eagle

Protection Act, Congress specifically stated that the purpose was to preserve

the bald eagle because of its special status as our national symbol, 76 Pub. L.

No. 567, 54 Stat. 250 (1940), and in amending the Act, Congress stated that

protecting the golden eagle would further this purpose because the bald eagle

is often killed by persons mistaking it for the golden eagle, 87 Pub. L. No. 887,

76 Stat. 1246 (1962). Furthermore, the Supreme Court has suggested that

protecting migratory birds in general might qualify as a compelling interest.

Missouri v. Holland, 252 U.S. 416, 435 (1920) (referring to the protection of

migratory birds as “a national interest of very nearly the first magnitude”).

2. Fulfilling Responsibilities to Federally Recognized Tribes

The Department argues that there is a second compelling interest in

“fulfilling its unique responsibilities to federally recognized tribes.” The

Supreme Court has long held that Congress’s constitutional authority to

“regulate Commerce . . . with the Indian Tribes” includes an obligation to

protect the interests of federally recognized tribes. Morton v. Mancari, 417

U.S. 535, 552 (1974) (quoting U.S. Const. art. I, § 8, cl. 3). Our sister courts

have found such an interest to be compelling in similar cases. See Wilgus, 638

F.3d at 1285 (“[T]he interest found compelling arises from the federal

government’s obligations, springing from history and from the text of the 10


No. 13-40326

Constitution, to federally-recognized Indian tribes.”);10 Gibson v. Babbitt, 223

F.3d 1256, 1258 (11th Cir. 2000) (same).

We agree that Congress has the ability to protect the country’s

relationship with federally recognized tribes. Given the fact that Congress did

not define “Indian tribes” in this particular section, and the fact that the

Department’s approach has not been entirely uniform on this, we cannot

definitively conclude that Congress intended to protect only federally

recognized tribe members’ religious rights in this section. The Department

does not question the fact that Soto is a member of the Lipan Apache Tribe or

that he is the pastor of the McAllen Grace Brethren Church and the Native

American New Life Center. While the Lipan Apache Tribe is not federally

recognized, the Texas Senate has recognized the Lipan people as having lived

in Texas and Northern Mexico for 300 years and that they have had a

“government to government” relationship with the Republic of Texas,11 the

State of Texas, and the United States government.12 Tex. S. Con. Res. 438,

81st Leg., R.S. (2009). More importantly, the Department does not contest

Soto’s sincerity.

We also note that the Supreme Court, has not embraced the concept that

such a relationship alone can justify granting religious exceptions for them

while denying other religious groups the same, or similar, accommodations.

10 Cf. United States v. Hardman, 297 F.3d 1116, 1128 (10th Cir. 2002) (en banc) (finding a compelling interest in “protecting Indian cultures from extinction”).

11 The Live Oak Treaty of 1838 established a relationship between the Lipan Apache

Tribe and the Republic of Texas. Tex. S. Con. Res. 338, 82nd Leg., R.S. (2011).

12 The Lipan Apache Tribe has also received federal funding prior to 2007; however, this funding was the result of its status as a non-profit entity. While there are approximately 400 non-federally recognized tribes in the United States, fewer than 50 were recipients of federal funding. US GOV’T. ACCOUNTABILITY OFFICE, GAO-12-348, INDIAN ISSUES: FEDERAL FUNDING FOR NON-FEDERALLY RECOGNIZED TRIBES 10 (2012).

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See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418,

430–32 (2006) (“O Centro”).13 In holding that a ban on a hallucinogenic

substance violated RFRA as it applied to a particular religious sect, the Court

noted that there existed a regulatory exemption for the use of peyote by the

Native American Church. Id. at 433. The Supreme Court explicitly rejected

the Government’s argument that the special relationship between the United

States and the Tribes justified the exemption of peyote for American Indians,

but not other substances for other religious purposes. Id. at 432–34 (the

Government “never explains what about that ‘unique’ relationship justifies

overriding the same congressional findings on which the Government relies in

resisting any exception for the UDV’s religious use of [a controlled substance]”).

The Hardman court’s analysis in regards to an American Indian who

was not a member of a federally recognized tribe is illustrative of this concern:

[T]he government offers no evidence on the threshold question of whether allowing sincere practitioners who are not members of federally recognized tribes to possess eagle feathers, in addition to those who are members, truly threatens Native American culture. Allowing a wider variety of people to participate in Native American religion could just as easily foster Native American culture and religion by exposing it to a wider array of persons.

297 F.3d at 1133. The Department has failed to present evidence at the

summary judgment phase that an individual like Soto—whose sincerity is not

in question and is of American Indian descent—would somehow cause harm to

the relationship between federal tribes and the government if he were allowed

13 O Centro concerned the Controlled Substances Act, 84 Stat. 1232, as amended, 21 U.S.C. § 801 et seq. (2000 ed. and Supp. I), which “regulates the importation, manufacture, distribution, and use of psychotropic substances.” O Centro, 546 U.S. at 425. “O Centro Espírita Beneficente Uniã do Vegetal (UDV) is a Christian Spiritist sect based in Brazil, with an American branch of approximately 130 individuals” that received communion through sacramental tea made from two plants that contain a hallucinogen listed in Schedule I of the Controlled Substances Act. Id. By criminalizing even the possession of the substance, the regulation substantially burdened the UDV’s spiritual practices. Id. at 426.

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access to eagle feathers, especially given congressional findings that the

exception was born out of a religious concern. See Dion, 476 U.S. at 741–43;

see also O Centro, 546 U.S. at 434 (congressional findings that support one

exception will support similar exceptions); Merced, 577 F.3d at 592–93.14 The

Department also fails to account for the fact that there are a multitude of non-

religious exceptions to the statute. See 16 U.S.C. § 668a (exceptions exist for

scientific and exhibition purposes, for the protection of wildlife or agriculture,

or “other interests in any particular locality”); see also Merced, 577 F.3d at 594.

The Department’s “evidence” here was largely dependent on the rulings

of other circuits. Given the fact that the government bears the burden and the

relative paucity of the record, we conclude that the Department and the

Plaintiffs should have the opportunity to further develop the record on whether

the protection of federally recognized tribes is a compelling interest protected

by this statute. See also Hobby Lobby, 134 S. Ct. at 2779 (the governmental

interest cannot be “couched in very broad terms” but must be “focused” on the

particular claimant whose interest is substantially burdened).

Assuming arguendo that either or both interests (protection of eagles

and further the relationship with federally recognized tribes) are compelling

governmental interests, we conclude that the Department has not sufficiently

demonstrated at this stage of the proceedings that the current regulatory

framework is the least restrictive means of achieving its goals. We now turn,

then, to that consideration.

B. Least Restrictive Means

14 All this said, we in no way wish to endorse some type of “blood test” for protecting religious liberty. The eagle feathers cases have addressed lineage and it is possible that a particular American Indian faith itself may focus on lineage; therefore, we address lineage against that backdrop.

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In the context of these cases, “least restrictive means” is a severe form of

the “narrowly tailored” test. See Sherbert, 374 U.S. at 407 (“[E]ven if the

possibility of spurious claims did threaten to dilute the fund and to disrupt the

scheduling of work, it would plainly be incumbent upon [the Government] . . . to

demonstrate that no alternative forms of regulation would combat such abuses

without infringing First Amendment rights.” (emphasis added)); Yoder, 406

U.S. at 215 (“The essence of all that has been said and written on the subject

is that only those interests of the highest order and those not otherwise served

can overbalance legitimate claims to the free exercise of religion.” (emphasis

added)). It is an “exceptionally demanding” test for the Department to meet.

Hobby Lobby, 134 S. Ct. at 2780. We have previously held that, for purposes

of analyzing a statute, “[t]he phrase ‘least restrictive means’ has its plain

meaning.” Sossamon v. Lone Star State of Tex., 560 F.3d 316, 332 (5th Cir.

2009). Because the Appellants have shown that the regulation substantially

burdens their exercise of religion, the Department has the burden of proving

that its implementation of the MBTA and Eagle Protection Act is the least

restrictive means of furthering those interests. Hobby Lobby, 134 S. Ct. at

2780; see also Adkins v. Kaspar, 393 F.3d 559, 567 n.32 (5th Cir. 2004).

Recent Supreme Court cases, unavailable to the district court at the time

it granted summary judgment, have reaffirmed that the burden on the

government in demonstrating the least restrictive means test is a heavy

burden. See Hobby Lobby, 134 S. Ct. at 2780–82; see also McCullen v. Coakley,

134 S. Ct. 2518, 2540 (2014)(addressing strict scrutiny in the context of First

Amendment speech). The very existence of a government-sanctioned exception

to a regulatory scheme that is purported to be the least restrictive means can,

in fact, demonstrate that other, less-restrictive alternatives could exist. See

Hobby Lobby, 134 S. Ct. at 2781–82; see also O Centro, 546 U.S. at 433; Church

of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 547 (1993) (“It is 14


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established in our strict scrutiny jurisprudence that a law cannot be regarded

as protecting an interest of the highest order . . . when it leaves appreciable

damage to that supposedly vital interest unprohibited.” (citation and internal

quotation marks omitted)). Furthermore, the Department must provide actual

evidence, not just conjecture, demonstrating that the regulatory framework in

question is, in fact, the least restrictive means. See Hobby Lobby, 134 S. Ct. at

2780–81.

1. Protecting Eagles

At the outset, we note that our analysis is limited to the possession and

use of eagle feathers (which can be obtained from and without harm to living

eagles) and we do not have before us (and do not address) the question of eagle

carcasses and other issues which require that the eagle be dead. The

Department presents two arguments for why excluding sincere adherents of

American Indian religions such as Soto who are not members of federally

recognized tribes from receiving permits advances the government’s interest

in preserving the eagle population: (1) allowing broader possession would

undermine law enforcement’s efforts to combat the illegal trade of eagle

feathers and parts; and (2) broader permitting would create law enforcement

problems because law enforcement does not have a means of verifying an

individual’s American Indian heritage.

The Department’s argument stems from affidavits taken from agents

stating that a possession prohibition is necessary because there is no viable

way for agents in the field to determine whether a deceased eagle carcass or

parts were taken illegally. The agents also state that if there was no

prohibition on possession, poaching would increase in order to satisfy a black

market in eagles and eagle feathers. The Department’s argument lacks

sufficient evidence to prove that the ban in its current form is the “least

restrictive means.” See Hobby Lobby, 134 S. Ct. at 2780–83 (requiring the 15


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government to provide evidence—statistical or otherwise—to prove the harms

asserted; the government cannot prevail where “no effort [is made] to

substantiate the prediction” ).

First, the evidence in the record simply does not support the assertion

that expanding the permitting process would cause an increase in poaching.

This is mere speculation on the part of the agents who provided affidavits and

testimony, and the Supreme Court has stated that mere speculation is not

sufficient to satisfy a least restrictive means test. See id.; see also Sherbert,

374 U.S. at 407 (rejecting a slippery slope argument similar to the one offered

in this case, dismissing it as “no more than a possibility” that the State’s

speculation “that the filing of fraudulent claims by unscrupulous claimants

feigning religious objections to Saturday work” would drain unemployment

benefits). This case involves eagle feathers, rather than carcasses. It is not

necessary for an eagle to die in order to obtain its feathers. Thus, speculation

about poaching for carcasses is irrelevant to Soto’s request for return of

feathers.

Second, the evidence in the record indicates that agents currently have

to rely on anecdotal information and interviews with American Indians who

possess feathers to determine the legal status of the feathers in question. This

would not change if the permitting system was expanded, and therefore, the

Department has failed to present specific evidence that the Plaintiffs’ religious

practice would jeopardize the preservation of the bald and golden eagles. See

Merced, 577 F.3d at 592–93; Hardman, 297 F.3d at 1133.

Third, while it is possible to hypothesize that the current system has

kept the black market smaller because there are fewer individuals who can

legally possess feathers—and this is what the agents assume—it is also

possible to hypothesize that the black market exists precisely because sincere

adherents to American Indian religions cannot otherwise obtain eagle feathers. 16


No. 13-40326

See Hardman, 297 F.3d at 1132–33. The burden is on the Department to prove

that their hypothesis would come to fruition. See Hobby Lobby, 134 S. Ct. at

2783.

Fourth, the fact that the statute already contains a broad, catch-all

provision for granting permits for “other interests” suggests that broadly

considering permits is not antithetical to the goals of the Eagle Protection Act.

16 U.S.C. § 668a; see also Merced, 577 F.3d at 594. The fact that exceptions

exist to the possession ban calls into doubt the Department’s claims that

someone in Soto’s position should find his religious practices hindered simply

to further a goal that history demonstrates is achievable even when there are

exceptions in place. See O Centro, 546 U.S. at 433.

Furthermore, the Department has not provided sufficient evidence at

this stage to conclude that there are no other means of enforcement that would

achieve the same goals. See Hobby Lobby, 134 S. Ct. at 2780–81; see also

Sherbert, 374 U.S. at 407. For example, the Department could require that

individuals prove they obtained the feathers legally, by producing a valid

permit. The regulations already allow the possession of certain feathers

without a permit demonstrating that there is a method in place for

determining whether feathers are legally held. See 50 C.F.R. § 22.2. The

Plaintiffs have also suggested that they be allowed to collect feathers that have

molted both in the wild and in zoos. The Department has not shown that this

is not a viable alternative, and, importantly, it is its burden to do so. See Hobby

Lobby, 134 S. Ct. at 2780–82 (noting that the government could not prove that

its policy was the least restrictive when it had failed to provide evidence

proving that suggested alternatives were not viable). While the Department

urges that doing so would make it impossible to determine if the feathers

possessed were truly molted or taken in some other way, the Department’s

difficulties with enforcement do not justify the diminishing of individual rights, 17


No. 13-40326

especially if a less restrictive alternative could achieve the same goals without

harming the rights of someone like Soto, a sincere adherent who is a member

of a tribe that is not federally recognized. See Sherbert, 374 U.S. at 407.

Finally, while the Department states that the current system keeps the

agents from having to be “religious police” by keeping them from having to

verify the genealogy of individuals who possess feathers, there is simply no

evidence in the record indicating that individuals who sincerely practice

American Indian religions could not demonstrate their religious need for eagle

feathers. The current permitting regulations, after all, already require

applicants to demonstrate that they need the feathers for a bona fide tribal

religious ceremony. 50 C.F.R. § 22.22. Sincerity is an inherent issue in a RFRA

case, but it is not an issue in this case where the Bureau admits Soto’s sincerity.

Because the government has not satisfactorily proved at this stage that there

are not other less restrictive alternatives that could achieve the statute’s

preservation goals without burdening the practice of American Indian religions

by American Indians, we must remand for further development of the record

on the question of whether the current regulations are the least restrictive

means of achieving the interest of protecting eagles. See 42 U.S.C. § 2000bb-

1(b). On remand, the district court should consider the authorities cited in

light of the Supreme Court’s recent holding in Hobby Lobby and its exacting

standard. 134 S. Ct. at 2779–82.

2. Fulfilling Responsibilities to Federally Recognized Tribes

Even assuming, without deciding, that the statute is meant to fulfill a

compelling interest in the government’s responsibilities to federally recognized

tribes, the Department has not, at this stage and on this record, carried its

burden to demonstrate that the current permitting system is the least

restrictive means of accomplishing that interest. See 42 U.S.C. § 2000bb-1(b).

The Department states that opening the permitting process to individuals who 18


No. 13-40326

are not members of federally recognized tribes would frustrate this purpose

because it would (1) lengthen repository wait times exponentially and (2)

increase the black market. We have already explained that the Department’s

claims regarding an increasing black market are speculative at best; therefore,

we will only consider the Department’s claims regarding the inability of the

repository to accommodate a larger number of permits.

The Department’s argument rests on the premise that the repository

simply cannot fill the current needs of individuals who have permits in a timely

fashion. These wait times arguably would be exacerbated by an influx of

permits. The Department estimates that there would be a multi-million person

increase in potential permits because, while there are approximately 2 million

members of federally recognized tribes, there are 5.2 million persons of

American Indian and Alaska Native heritage according to the 2010 census

data.

The evidence regarding the numbers of eligible applicants is not

sufficient to prove that there would be such an overwhelming number of

permits sought and granted that the repository would be so overwhelmed as to

endanger the ability for the federal government to fulfill its “unique”

responsibilities to federally recognized tribes. See Hobby Lobby, 134 S. Ct. at

2780–81; see also Merced, 577 F.3d at 592–93 (defendant must show “specific

evidence” that the religious practice would jeopardize its stated interest).

Here, there is no evidence regarding the numbers of individuals who are not

members of federally recognized tribes, but who do practice the American

Indian religions that hold eagle feathers to be sacred. These numbers would

be necessary to demonstrate that the exclusion of a particular subset of

American Indian religion adherents is necessary to achieve any compelling

governmental interest. See Merced, 577 F.3d at 592–93; see also Hardman,

297 F.3d at 1133. 19


No. 13-40326

The Department’s main argument is that opening the repository to

individuals who are bona fide religious adherents, but not members of federally

recognized tribes, will tax the repository, and that taxing the repository will

make it more difficult for members of federally recognized tribes to obtain eagle

feathers, which will, in turn, hinder the ability of the federal government to

fulfill its responsibilities to federally recognized tribes. At this stage, the

Department has not provided specific evidence of how allowing individuals,

and in particular, Soto, whose sincerity is not questioned, to acquire permits

would jeopardize the stated interest such that it has not, at this point, proved

its case on the least restrictive means analysis. See 42 U.S.C. § 2000bb-1(b);

see also Hobby Lobby, 134 S. Ct. at 2780–81; Merced, 577 F.3d at 592–93.

Perhaps more importantly, on the state of this record, it appears that

this argued harm is one of the government’s own making: the alleged harm to

members of federally recognized tribes is caused by the system the government

has created because the repository that it established and runs is inefficient.

See Hobby Lobby, 134 S. Ct. at 2780–81 (noting that one “least restrictive

means” may include the Government “assum[ing] the cost” of providing the

contraceptives at issue there). The Department cannot infringe on Soto’s

rights by creating and maintaining an inefficient system and then blaming

those inefficiencies for its inability to accommodate Soto. See id.; see also

Sherbert, 374 U.S. at 407.

Left largely unexamined are the numerous solutions provided by the

Plaintiffs, including collecting molted feathers from zoos or allowing tribes to

run aviaries, and in fact, there is evidence in the record that certain tribes

already do maintain eagle aviaries. The Department has not provided

sufficient evidence to prove that these means would not achieve the

government’s goals (i.e., providing feathers to federally recognized tribe

members) and therefore, has failed to carry its burden at this stage under 20


No. 13-40326

RFRA. See Hobby Lobby, 134 S. Ct. 2751; see also Adkins, 393 F.3d at 567

n.32.

We thus have a different take on this matter than the observation that

“RFRA does not require the government to make the practice of religion

easier.” Vasquez-Ramos, 531 F.3d at 992–93. Soto does not seek to make the

practice of his religion “easier,” he seeks to avoid roadblocks of the

government’s own making which have made the practice of his religion not just

“not easier” but impossible. The other circuits that have accepted the

government’s “least restrictive means” arguments have done so in contexts not

assessing the questions of whether the government’s own inefficiencies can be

considered “the least restrictive means” and whether other avenues that put

the burden on plaintiffs (like collecting feathers from zoos) would be less

restrictive. See, e.g., Wilgus, 638 F.3d at 1289–95; Babbitt, 223 F.3d at 1257–

58. On the records before them, these circuits accepted the Department’s

analysis that the current difficulties in obtaining eagle feathers warranted

limiting the individuals who could gain access to them. See, e.g., Wilgus, 638

F.3d at 1295.

Those cases involved in most instances much better-developed records.

We cannot accept the argument on this record for the reasons stated above.

See O Centro, 546 U.S. at 432–34; cf A.A. ex. rel. Betenbaugh, 611 F.3d at 264.

Furthermore, these cases were decided before the Supreme Court’s holding in

Hobby Lobby clarified how heavy the burden is on the Department to

demonstrate that the regulatory framework is the least restrictive means. See

Hobby Lobby, 134 S. Ct. at 2780–82.15

15 The Supreme Court has also recently made clear that the government has the burden in strict scrutiny cases of demonstrating that the alternative measures would fail to achieve their interests, not simply that the chosen route is “easier.” See McCullen, 134 S. Ct. at 2540 (holding that to satisfy First Amendment scrutiny, the government must demonstrate that the alternative means would fail to achieve its interests, not simply be more

21


No. 13-40326

We do not agree, therefore, with the district court that, on this record at

this stage, the Department has met its burden in demonstrating that a

possession ban on all but a select few American Indians is the least restrictive

means of achieving any compelling interest in maintaining the trust

relationship between the United States and federally recognized tribes. The

burden on the Department is a high one: they must demonstrate that “no

alternative forms of regulation” would maintain this relationship without

infringing upon the rights of others. Sherbert, 374 U.S. at 407. At this stage,

the Department has not shown that this regulation is the least restrictive

means of furthering its compelling interests.

VI. Conclusion

For the foregoing reasons, we conclude that the Department has not

carried its burden in showing that the current permitting scheme does not

violate RFRA; therefore, we REVERSE the district court’s grant of summary

judgment in favor of the Department and REMAND for proceedings consistent

with this opinion.

difficult). Although a free-speech case, McCullen makes clear that Department’s burden is heavier than simply showing that the current regulation “works” to effectuate its interests.

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No. 13-40326

JONES, Circuit Judge, concurring.

I concur in the carefully written panel opinion with one point of

clarification. Soto is without dispute an Indian and a member and regular

participant in the Lipan Apache Tribe, which, although not federally

recognized, has long historical roots in Texas. The panel opinion discusses—

and is also limited by—Soto’s RFRA claim based on his and his tribe’s status.

No more should be read into the RFRA protection intended by this decision.

Both the conservation of eagles and the way of life of federally recognized

Indian tribes are of signal national importance, as indicated by decades of

federal law and regulations. If the government sustains its position that the

supply of eagle feathers is limited and that increasing access by non-recognized

tribe members, or even by non-Indians, to eagle feathers for sacred purposes

will endanger the eagles and the federally recognized tribes, this case becomes

very close. Broadening the universe of “believers” who seek eagle feathers

might then seriously endanger the religious practices of real Native

Americans. Soto’s status does not eliminate the potential problems, which will

be explored at trial, but cabins this case to Native American co-religionists.

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Documents

IN THE UNITED STATES COURT OF APPEALS FOR THE · PDF fileUnited States Court of Appeals Fifth Circuit . FILED . August 20, 2014 . Lyle W. Cayce . Clerk . Case: 13-40326 Document: 00512752300